B-147037, NOVEMBER 27, 1961, 41 COMP. GEN. 334

B-147037: Nov 27, 1961

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A FEMALE NAVY OFFICER WHO IS ASSIGNED TO A POST OF DUTY WHICH IS NOT ADJACENT TO THE STATION TO WHICH HER ARMY OFFICER HUSBAND IS ASSIGNED IS REGARDED BY REASON OF HER DUTY ASSIGNMENT AS BEING PRECLUDED BY ORDERS OF COMPETENT AUTHORITY FROM OCCUPYING AVAILABLE FAMILY TYPE QUARTERS AT THE HUSBAND'S DUTY STATION. THE ASSIGNMENT OF FAMILY TYPE QUARTERS TO THE HUSBAND IS NOT REQUIRED AND THE FACT THAT SINGLE QUARTERS ARE AVAILABLE FOR ASSIGNMENT TO HIM DOES NOT OPERATE TO DEPRIVE HIM OF QUARTERS ALLOWANCE. IS ENTITLED TO A QUARTERS ALLOWANCE ON ACCOUNT OF HIS DEPENDENT. BECAUSE THE DEPENDENT IS IN RECEIPT OF BASIC PAY. THE MEMBER IS ENTITLED ONLY TO THE RATE AUTHORIZED FOR AN OFFICER OF HIS RANK WITHOUT DEPENDENTS.

B-147037, NOVEMBER 27, 1961, 41 COMP. GEN. 334

QUARTERS ALLOWANCE - NONOCCUPANCY FOR PERSONAL REASONS - MARRIAGE TO ANOTHER MEMBER OF ARMED SERVICES FOR A QUARTERS ALLOWANCE DETERMINATION, A FEMALE NAVY OFFICER WHO IS ASSIGNED TO A POST OF DUTY WHICH IS NOT ADJACENT TO THE STATION TO WHICH HER ARMY OFFICER HUSBAND IS ASSIGNED IS REGARDED BY REASON OF HER DUTY ASSIGNMENT AS BEING PRECLUDED BY ORDERS OF COMPETENT AUTHORITY FROM OCCUPYING AVAILABLE FAMILY TYPE QUARTERS AT THE HUSBAND'S DUTY STATION, AND, THEREFORE, THE ASSIGNMENT OF FAMILY TYPE QUARTERS TO THE HUSBAND IS NOT REQUIRED AND THE FACT THAT SINGLE QUARTERS ARE AVAILABLE FOR ASSIGNMENT TO HIM DOES NOT OPERATE TO DEPRIVE HIM OF QUARTERS ALLOWANCE, SUCH QUARTERS NOT BEING ADEQUATE FOR HIM AND HIS DEPENDENT; ACCORDINGLY, THE HUSBAND, WHO RESIDES IN OFF-BASE RENTAL QUARTERS WITH HIS WIFE, IS ENTITLED TO A QUARTERS ALLOWANCE ON ACCOUNT OF HIS DEPENDENT, BUT BECAUSE THE DEPENDENT IS IN RECEIPT OF BASIC PAY, THE MEMBER IS ENTITLED ONLY TO THE RATE AUTHORIZED FOR AN OFFICER OF HIS RANK WITHOUT DEPENDENTS.

TO MAJOR D. J. SEILER, DEPARTMENT OF THE ARMY, NOVEMBER 27, 1961:

BY SECOND ENDORSEMENT DATED AUGUST 21, 1961, THE FIELD DIVISION, OFFICE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, FORWARDED YOUR LETTER DATED JULY 19, 1961, REQUESTING AN ADVANCE DECISION CONCERNING THE PROPRIETY OF PAYMENT TO LIEUTENANT WILLIAM N. BRADY OF A QUARTERS ALLOWANCE AS FOR AN OFFICER WITHOUT DEPENDENTS FROM APRIL 18, 1961. THIS REQUEST WAS FORWARDED UNDER D.O. NUMBER A-599 ALLOCATED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE RECORD SHOWS THAT ON APRIL 1, 1961, LIEUTENANT BRADY, WHILE ON DUTY AT ABERDEEN PROVING GROUND, MARYLAND, WAS MARRIED TO ENSIGN URLA S. DECKER, NC, USNR, WHO IS STATIONED AT THE NATIONAL NAVAL MEDICAL CENTER, BETHESDA, MARYLAND, AND WHO IS DRAWING BASIC ALLOWANCE FOR QUARTERS IN HER OWN RIGHT BY VIRTUE OF THE CERTIFICATION OF THE NONAVAILABILITY OF QUARTERS. ADEQUATE FAMILY QUARTERS ARE AVAILABLE AT ABERDEEN PROVING GROUND, MARYLAND, FOR ASSIGNMENT TO LIEUTENANT BRADY FOR OCCUPANCY WITH HIS WIFE. HOWEVER, HE HAS NOT BEEN ASSIGNED ANY FAMILY QUARTERS AND SINCE APRIL 18, 1961, HE HAS BEEN PERMITTED TO RESIDE OFF BASE WITH HIS WIFE IN A RENTED APARTMENT AT 3416 TULANE DRIVE, WEST HYATTSVILLE, MARYLAND.

THE HEADQUARTERS COMMANDANT AT YOUR STATION HAS EXPRESSED THE OPINION THAT ISSUANCE OF A CERTIFICATE STATING THAT QUARTERS SUITABLE TO LIEUTENANT BRADY'S MARITAL STATUS ARE NOT AVAILABLE WOULD BE IMPROPER APPARENTLY BECAUSE HE IS JOINTLY OCCUPYING PRIVATE RENTAL QUARTERS WITH HIS WIFE AND ADEQUATE FAMILY QUARTERS ARE AVAILABLE AT ABERDEEN, MARYLAND. ON THE PREMISE, HOWEVER, THAT LIEUTENANT BRADY AND HIS OFFICER WIFE ARE NOT STATIONED AT THE SAME OR ADJACENT POSTS, YOU ASK WHETHER HE MAY BE CREDITED WITH THE BASIC ALLOWANCE FOR QUARTERS AUTHORIZED FOR AN OFFICER WITHOUT DEPENDENTS. ALSO, YOU ASK WHETHER OR NOT THE HEADQUARTERS COMMANDANT MAY PROPERLY ISSUE A CERTIFICATE FOR THE INSTALLATION COMMANDER "THAT QUARTERS SUITABLE TO YOUR MARITAL STATUS ARE NOT AVAILABLE" IN THIS AND OTHER LIKE CASES.

SECTION 302 OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 252, AUTHORIZES THE PAYMENT OF A BASIC ALLOWANCE FOR QUARTERS TO MEMBERS OF THE UNIFORMED SERVICES IN SUCH AMOUNTS AND UNDER SUCH CIRCUMSTANCES AS ARE PROVIDED IN THE SECTION. THE SECTION PROVIDES THAT THE BASIC ALLOWANCE FOR QUARTERS SHALL NOT ACCRUE TO MEMBERS ASSIGNED TO APPROPRIATE GOVERNMENT QUARTERS ADEQUATE FOR THEMSELVES AND DEPENDENTS, IF WITH DEPENDENTS, UNLESS THEIR DEPENDENTS ARE PREVENTED BY ORDERS OF COMPETENT AUTHORITY FROM OCCUPYING SUCH QUARTERS. THE PRESIDENT IS AUTHORIZED TO PRESCRIBE REGULATIONS FOR THE ADMINISTRATION OF THAT SECTION AND SUCH REGULATIONS ARE CONTAINED IN EXECUTIVE ORDER NO. 10204. PARAGRAPH 6 OF THE EXECUTIVE ORDER AUTHORIZES THE SECRETARIES CONCERNED TO ISSUE SUCH SUPPLEMENTARY REGULATIONS, NOT INCONSISTENT WITH THE EXECUTIVE ORDER, AS MAY BE NECESSARY OR DESIRABLE FOR CARRYING OUT ITS PROVISIONS AND PARAGRAPH 2 OF THE EXECUTIVE ORDER PROVIDES THAT UNLESS OTHERWISE PROVIDED BY STATUTE, THE MEMBERS CONCERNED SHALL BE ENTITLED TO PAYMENT OF THE QUARTERS ALLOWANCE IN ACCORDANCE WITH SUCH REGULATIONS. SUBSECTION 102 (G) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 804, 37 U.S.C. 231 (G), DEFINES THE TERM "DEPENDENT" FOR PURPOSES OF THE ACT AS INCLUDING AT ALL TIMES AND PLACES A LAWFUL WIFE BUT DECLARES THAT NO MEMBER CLAIMING A DEPENDENT AS DEFINED IN THE SUBSECTION MAY BE PAID INCREASED ALLOWANCES ON ACCOUNT OF SUCH DEPENDENT FOR ANY PERIOD DURING WHICH THE DEPENDENT IS ENTITLED TO RECEIVE BASIC PAY FOR THE PERFORMANCE OF DUTY AS DEFINED IN "SECTION 201 (E)" OF THE ACT, 37 U.S.C. 232 (E).

WITH RESPECT TO THE SECTION 102 (G) PROVISION, SECTION 201 (E) TO WHICH IT REFERS WAS RENUMBERED 201 (D), 37 U.S.C. 232 (D), BY SECTION 2 (2) OF THE CAREER INCENTIVE ACT OF 1955, 69 STAT. 19, 37 U.S.C AND A NEW SECTION 201 (E) FIXING THE RATE OF PAY FOR AVIATION CADETS ADDED BY SECTION 2 (3) OF THAT ACT. WE FIND NOTHING, HOWEVER, IN THE LANGUAGE OR LEGISLATIVE HISTORY OF THE CAREER INCENTIVE ACT OF 1955, WHICH INDICATES THAT THE FAILURE TO AMEND THE SECTION REFERENCE IN SECTION 102 (G) TO MAKE IT AGREE WITH SUCH CHANGES REFLECTS ANY INTENT ON THE PART OF CONGRESS TO ALTER THE BASIS OF THE INCREASED ALLOWANCE RESTRICTION. CONSEQUENTLY, WE BELIEVE THE PROVISION IS TO BE VIEWED AS REFERRING TO DUTY AS DEFINED IN THE PRESENT SECTION 201 (D). IN THIS REGARD IT MAY BE NOTED THAT TO CONCLUDE THAT THE PROVISION NOW APPLIES IN THE CASE OF THE PRESENT SECTION 201 (E) WOULD RENDER THE RESTRICTION A NULLITY SINCE THAT SECTION DOES NOT CONTAIN ANY DEFINITION OF DUTY.

REGARDING THE MATTER OF THE AVAILABILITY OF DEPENDENT QUARTERS AT LIEUTENANT BRADY'S STATION, PARAGRAPH 5-13 OF ARMY REGULATIONS 37-104 PROVIDES THAT THE RESPONSIBILITY FOR ASSIGNMENT AND TERMINATION OF QUARTERS AND FOR DETERMINATION THAT QUARTERS ARE "ADEQUATE" AND "APPROPRIATE" FOR ASSIGNMENT RESTS UPON THE COMMANDING OFFICER OF THE INSTALLATION. THE EXERCISE OF SUCH RESPONSIBILITY, HOWEVER, IS NOT WHOLLY DISCRETIONARY WITH THE COMMANDING OFFICER BUT IS SUBJECT TO THE PROVISIONS OF ARMY REGULATIONS 210-14 ESTABLISHING A UNIFORM PROCEDURE FOR COMMANDERS TO USE IN ESTABLISHING ELIGIBILITY OF PERSONNEL FOR ASSIGNMENT TO BACHELOR AND FAMILY QUARTERS. PARAGRAPH 8 OF THOSE REGULATIONS, CONCERNING THE ASSIGNMENT OF QUARTERS TO MEMBERS WITH DEPENDENTS, STATES THAT IT IS A DEPARTMENT OF THE ARMY POLICY TO ENCOURAGE MAINTENANCE OF THE FAMILY UNIT WHEREVER POSSIBLE AND THE MARITAL STATUS OF, OR EXISTENCE OF, DEPENDENTS OF MILITARY MEMBERS IS VIEWED AS THE GOVERNING FACTOR IN ASSIGNMENT OR NONASSIGNMENT OF FAMILY QUARTERS, AND IN SOME CASES, THE NONASSIGNMENT OF SINGLE QUARTERS, ACCOMPANIED BY CONSIDERATION OF RANK AND GRADE OF THE MEMBERS CONCERNED.

THE LAW CONTEMPLATES THAT FAMILY TYPE QUARTERS WHICH ARE AVAILABLE FOR ASSIGNMENT WILL BE USED TO THE MAXIMUM EXTENT PRACTICABLE. NEITHER THE LAW NOR THE REGULATIONS, HOWEVER, REQUIRE THE ASSIGNMENT OF FAMILY TYPE QUARTERS IF, BY REASON OF ORDERS OF COMPETENT AUTHORITY, THE DEPENDENTS ARE PRECLUDED FROM OCCUPYING SUCH QUARTERS. WHILE ORDINARILY IN THAT RESPECT THE DEPENDENTS USUALLY ARE BARRED FOR MILITARY REASONS FROM ACCOMPANYING THE MEMBER TO HIS DUTY STATION, IT APPEARS THAT LIEUTENANT BRADY'S WIFE IS NEVERTHELESS BY REASON OF HER DUTY ASSIGNMENT, TO BE REGARDED AS BEING PRECLUDED BY ORDERS OF COMPETENT AUTHORITY FROM OCCUPYING AVAILABLE FAMILY TYPE QUARTERS AT HIS DUTY STATION. HENCE, THE ASSIGNMENT OF FAMILY TYPE QUARTERS TO THE OFFICER IS NOT REQUIRED AND THE FACT THAT SINGLE QUARTERS ARE AVAILABLE FOR ASSIGNMENT TO HIM DOES NOT OPERATE TO DEPRIVE HIM OF QUARTERS ALLOWANCE SINCE SUCH SINGLE QUARTERS WOULD NOT BE ADEQUATE FOR HIM AND HIS DEPENDENT IF ASSIGNED. IN SUCH CIRCUMSTANCES, IT IS CONCLUDED THAT LIEUTENANT BRADY IS ENTITLED TO A QUARTERS ALLOWANCE BECAUSE OF HIS DEPENDENT. SINCE, HOWEVER, HIS DEPENDENT IS IN RECEIPT OF BASIC PAY, THE ALLOWANCE IS PAYABLE AT THE RATE AUTHORIZED FOR AN OFFICER OF HIS RANK WITHOUT DEPENDENTS.

PAYMENT ON THE VOUCHER, RETURNED HEREWITH, IS AUTHORIZED, IF OTHERWISE PROPER.